United States v. Cicale

United States District Court, E.D. New York

January 10, 2018

UNITED STATES OF AMERICA,v.DOMINICK CICALE, Defendant.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Non-party
Jerry Capeci, a journalist, moves the court to unseal certain
documents in the above-captioned case. (Capeci Mot. to Unseal
("Mot.") (Dkt. 1416).) For the reasons stated
below, Capeci's motion is GRANTED IN PART and DENIED IN
PART.

In
January 2006, Defendant began cooperating with the
Government. (Gov't Sentencing Mem. at 11.) Shortly
thereafter, Defendant pleaded guilty to a four-count
information charging him with two counts of murder in aid of
racketeering, one count of racketeering conspiracy, and one
count of assault in aid of racketeering. (Superseding
Information (Dkt. 158); Gov't Sentencing Mem. at 11-12.)
As the Government detailed in its motion for downward
departure pursuant to Section 5K1.1 of the Sentencing
Guidelines, Cicale substantially assisted the investigation
and prosecution of members of the Bonanno and other La Cosa
Nostra crime families, including by testifying or preparing
to testify against Bonanno family acting bosses Vincent
Basciano and Michael Mancuso and Gambino family boss John A.
Gotti. (Gov't Sentencing Mem. at 13-57; Sentencing
Hr'g Tr. (Dkt. 1356) 6:9-10:23, 23:2-24:17.) According to
the Government, Defendant's "information and
testimony... led to the prosecution of more than a dozen
inducted members of the Bonanno family" and was
"particularly critical" to disrupting the
organization following the incarceration of longtime boss
Joseph Massino. (Gov't Sentencing Mem. at 1-2.)

Partly
in recognition of Defendant's extensive cooperation, the
court granted the Government's motion for a downward
departure and sentenced Defendant to a ten-year term of
imprisonment, followed by a five-year term of supervised
release (including a condition of 1, 000 hours of community
service), rather than the life sentence that the Sentencing
Guidelines advised. (Sentencing Hr'g Tr. 5:15-19,
16:18-28:25.) Having completed his term of imprisonment,
Defendant's current whereabouts are not, the Government
avers, a matter of public record. (Gov't Ltr. in Resp. to
the Mot. ("Gov't Resp.") (Dkt. 1424) at 1.)

Capeci
is a journalist who has written extensively about La Cosa
Nostra. He publishes "Gang Land, " a "weekly
online column about organized crime" on his website,
www.ganglandnews.com. Capeci asks the court to
unseal three documents that are implicitly referenced by the
public docket entry for the Government's December 9,
2014, Opposition to Defendant's Motion to Vacate or Alter
Sentence (the "Government's Opposition")
(Gov't Opp'n to Def. Mot to Vacate or Alter Sentence
("Gov't Opp'n") (Dkt. 1379)): (1) "a
motion by [Defendant] to set aside or vacate his
sentence"; (2) "the government letter of opposition
to that motion"; and (3) "any decision [the court]
may have made concerning" those filings. (Mot. at 1, 4.)

The
court has identified two documents that are responsive to
Capeci's motion. The first is a one-page pro se
letter to the court in which Defendant, citing health
problems and the risks posed by working around other felons,
asks the court to modify his conditions of supervised release
by vacating his community-service requirement. (See
Def. July 25, 2014, Mot. to Vacate or Alter Sentence
("Def. Mot.") (Dkt. Number Pending).)
Alternatively, Defendant proposes that the court allow him to
fulfill this requirement by performing community service
through a program of his own choosing. (Id.) The
second is the Government's Opposition, which notes that
"it is unclear how participation in [community service
programs recommended by Defendant's probation officer]
would compromise the defendant's safety" and advises
that placement with Defendant's requested
community-service organization "would be inadvisable and
inappropriate." (Gov't Opp'n at 2.) No. separate
document reflects the court's decision on Defendant's
motion, as the court simply denied that motion in a notation
on Defendant's letter. (Def. Mot.)

After
Capeci moved to unseal these documents, the court directed
the Government and Defendant to respond to Capeci's
motion by either (1) consenting to having the requested
documents unsealed or (2) explaining why the documents should
be kept under seal and proposing redacted public versions of
each. (May 17, 2017, Order (Dkt. 1418).) The Government has
responded to that order; Defendant has not. (Gov't Resp.;
Gov't Sealed Ex Parte Ltr. (Dkt. 1425)
(proposing redactions).) In its response, the Government
argues that, to balance the public interest in access to the
documents in question with the risk that full disclosure
would endanger Defendant, the court should unseal the
documents in question subject to redaction of "certain
information that could reveal [Defendant's] relocation
area, which is not otherwise known to the public."
(Gov't Resp. at 1.)

II.
LEGAL STANDARD

"Federal
courts employ two related but distinct presumptions in favor
of public access to court proceedings and records: a strong
form rooted in the First Amendment and a slightly weaker form
based in federal common law." Newsdav LLC v. Ctv. of
Nassau, 730 F.3d 156, 163 (2d Cir. 2013); see also
In re NBC Universal. Inc.. 426 F.Supp.2d 49, 56
(E.D.N.Y. 2006) ("The First Amendment demands broader
disclosure than the common law." (emphasis omitted)).

A.
First Amendment

Under
the First Amendment, the public has a qualified right of
access to criminal trials and to other criminal proceedings
that "considerations of experience and logic"
dictate should presumptively be open to the public.
Press-Enterprise Co. v. Super. Ct. of Calif, for
Riverside Ctv.,478 U.S. 1, 7-13 (1986). The First
Amendment qualified public right of access is not limited to
the right to attend proceedings, but also covers many court
documents. Newsdav. 730 F.3d at 163-64. In
determining whether the First Amendment right of access
attaches to a particular document, the court takes two
approaches. Under the first, in line with the
"experience and logic" test prescribed by
Press-Enterprise, the court considers "both
whether the documents have historically been open to the
press and general public and whether public access plays a
significant positive role in the functioning of the
particular process in question." Id. at 164
(quoting Lusosch v. Pyramid Co. of Onondaga, 435
F.3d 110, 120 (2d Cir. 2006)). Under the second, if the
document "relate[s] to judicial proceedings covered by
the First Amendment right, " the court "asks
whether the documents at issue 'are derived from or are a
necessary corollary of the capacity to attend the relevant
proceedings.'" Id. (quoting
Lugosch, 435 F.3d at 120).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
First Amendment right of access is qualified, not absolute.
Even when the First Amendment right of access applies,
"[proceedings may be closed and, by analogy, documents
may be sealed if &#39;specific, on the record findings are
made demonstrating that closure is essential to preserve
higher values and is narrowly tailored to serve that
interest.&#39;" In re N.Y. Times Co., 828 F.2d
110, 116 (2d Cir. 1987) (quoting Press-Enterprise,
478 U.S. at 13-14). Compelling interests warranting closure
of a courtroom-and, by extension, sealing of court documents-
"may include the defendant&#39;s right to a fair trial;
privacy interests of the defendant, victims or other persons;
the integrity of significant government activities entitled
to confidentiality, such as ongoing undercover investigations
or detection devices; and danger to persons or
property." United States v. Doe,63 F.3d 121,
128 (2d Cir. 1995) (citations, internal quotation marks, and
alterations omitted). "The more extensive a request for
sealing, 'the greater must be the gravity of the ...

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